HJR 501

Joint Subcommittee to Study the Virginia Freedom of Information Act

November 12, 1999, Richmond

The topics discussed at the joint subcommittee's fifth meeting of the interim were (i) the inclusion of private foundations that support Virginia's public institutions of higher education as public bodies under the Freedom of Information Act (FOIA) and (ii) the creation of a "sunshine office" in Virginia.


Persons representing the various foundations established at the University of Virginia, Virginia Tech, Virginia Commonwealth University, and the Virginia Military Institute generally expressed the opinion that private foundations should not be subject to the same scrutiny as public bodies under FOIA, since they are not operational units of the colleges and universities but provide financial support through private donations. The reality is that the vast majority of a state university's operating budget does not come from public funds—an estimated 75 percent of the total operating budget comes from foundations and the tuition paid by students. Additionally, these representatives strongly believed that the need for legislation has not been demonstrated and that any change in the status quo might adversely affect private support of Virginia's institutions of higher education. It was pointed out that financial and other information about these foundations is already disclosed in the IRS Federal Tax Form 990 as well as in the annual reports prepared by the foundations.

The joint subcommittee discussed the potential for conflicts of interest in situations where contributors to state universities are also those who have contractual relationships with the university. In response, it was noted that the Virginia Public Procurement and the Conflicts of Interest Acts would control those relationships. Additionally, concern was expressed that universities may yield to pressures exerted by large contributors. To address this concern, the foundation representatives indicated that the respective boards of visitors hold positions of public trust (i.e., are fiduciaries) and do turn down "gifts with strings" if they feel the strings are improper or not in furtherance of the university's mission. It was pointed out that there are usually strings attached with gifts, generally in the form of a building or particular program.

In response to a proposal including these foundations as public bodies under FOIA offered by the Virginia Press Association, the University of Virginia presented a compromise proposal representing the consensus of Virginia's state colleges and universities, with the exception of VMI. It was clear that this counter proposal was offered only to the extent that the joint subcommittee felt that legislation was necessary.

The Virginia Press Association (VPA) indicated that it was not its intention to have private foundations subject to the meeting provisions of FOIA, but, in a records context, believed that the public has a right to know how the money is spent. On the conflict of interest issue, the VPA pointed out that if Virginia colleges and universities are funded in large part by private donations, then the recipients must pay attention to what the donors say. It is when private donations attempt to dictate public policy that the problem arises. The VPA pointed out that setting an amount at which disclosure would be required is difficult, because currently there is no access to this type of financial information.

Lacking consensus among the interested parties on either proposal, Delegate Woodrum asked that the representatives of the universities and the VPA meet separately to try to narrow the issues that divide them and arrive at a consensus. He also asked the parties to consider the feasibility of making persons who do business with a college or university to disclose how much they are giving to that institution instead of requiring all contributors to disclose the amount of their contributions.

Sunshine Office

Delegate Woodrum requested that interested parties form an informal work group to iron out the remaining details for the creation of a "sunshine office" in Virginia. Speaking for the joint subcommittee, Delegate Woodrum noted that a lot of framework may not be necessary above that which was already in the draft. If, after creation, the legislation needs to be adjusted, there will be an opportunity to fix it. The draft was patterned after the New York State Committee on Open Government, and Delegate Woodrum noted that he has heard nothing to suggest that the New York model is not working well.

Next Meeting

The next meeting of the joint subcommittee has been tentatively scheduled for December in Richmond. For access to documents and other information related to this study, contact the joint subcommittee's website at: http://dls.state.va.us/hjr 501.htm.

The Honorable Clifton A. Woodrum, Chairman
Legislative Services contact: Maria J. K. Everett